Semenchuk v. Ohio Dept. of Rehab. & Corr.Semenchuk v. Ohio Dept. of Rehab. & Corr.
Rendered on December 28, 2010
Allen J. Semenchuk, pro se.
Richard Cordrаy, Attorney General, and Mary Anne Reese, for appellee.
ON MOTION TO CERTIFY CONFLICT
CONNOR, J.
{¶1} Pursuant to
{¶2}
Whenever the judges of a court of appeals find that a judgment upon which they havе agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the statе, the judges shall certify the record of the case to the supreme court for review and final determination.
See also Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 1993-Ohio-223, syllabus, rehearing denied by Whitelock v. Cleveland Clinic Found. (1993), 67 Ohio St.3d 1420.
{¶3} In Whitelock, the Supreme Court of Ohio held, pursuant to
[A]t least three conditions must be met before and during the certification of a case to this court pursuant to
Section 3(B)(4), Article IV of the Ohio Constitution . First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be “upon the same question.” Second, the alleged conflict must be on а rule of law - - not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals.
(Emphasis sic.) Id. at 596
{¶4} Additionally, factual distinctions betweеn cases are not a basis upon which to certify a conflict. Id. at 599. “For a court of appeals to certify a casе as being in conflict
{¶5} Appellant proposes the following question to be сertified:
[Whether] the language of O.R.C. 2969.26(B) i[s] mandatory as is section A of the same code and [whether] a court must stay a procеeding to allow administrative exhaustion rather than dismissal.
(Motion to Certify Conflict.)
{¶6} Appellant‘s motion seems to assert that our decision in this case is in conflict with Boylen. In Boylen, the Fifth District reversed the trial court‘s ruling dismissing an inmate‘s complaint for failing to comply with
{¶7} In Boylen, an inmate appealed from a trial court‘s judgment dismissing his complaint requesting declaratory judgment, injunctive relief, and mоnetary damages against the department of correction, the individual institution, and various employees of the county clеrk‘s office. The complaint alleged funds had been improperly removed from his inmate account for the collection of court costs.
{¶8} The inmate attempted to comply with
{¶9} Thе Fifth District Court of Appeals reversed, finding that, although the inmate failed to comply with the mandatory provisions of
{¶10} As a result, the Fifth District determined that because the grievance process had not yet been completed at the timе the inmate filed his civil action, the trial court was required to stay the civil action for 180 days to allow the inmate to complete the grievance process, rather than dismiss the complaint.
{¶11} The facts and circumstances in the instant case are different from those found in Boylen. Here, like the inmate in Boylen, appellant failed to meet the mandatory requirements of
{¶12} Appellant does not aver that he is still participating in the grievance process or that the mattеr is yet to be resolved at that level. Instead, appellant asserts he did in fact exhaust his administrative remedies, although he failеd to attach proper proof. In addition, we are unaware of anything within the record which indicates that the grievance procedure was still ongoing at the time appellant filed his civil action in the court of common pleas. As a result, the рrovision requiring a stay as set forth in
{¶13} Therefore, we conclude our decision is not in conflict with Boylen. We find the two cases are factuаlly different, and as a result, a stay is not required here pursuant to
{¶14} Accordingly, we deny appellant‘s motion to certify conflict.
Motion to certify conflict denied.
TYACK, P.J., and McGRATH, J., concur.
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